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NAVY | DRB | 2001_Navy | ND01-00494
Original file (ND01-00494.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-EMFA, USN
Docket No. ND01-00494

Applicant’s Request
The application for discharge review, received 010306, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010829. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member proffers that he now regrets his inservice misconduct and ask to be given a second chance so that he can pursue a better future. On this basis, he petitions the Board’s relief with re characterization of discharge to full honorable and a narrative reason upgrade to convenience of the government.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Letter from applicant
Character reference
Character reference

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     961213 - 961222  COG

 Period of Service Under Review :
Date of Enlistment: 961223               Date of Discharge: 990507

 Length of Service (years, months, days):

         Active: 02 04 15
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 62

 Highest Rate: EMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 37

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :


970908:  Applicant to unauthorized absence 0600, 8Sep97.

 970909:  Applicant from unauthorized absence 0600, 9Sep97 (1 day/surrendered).
980303:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 0715, 20Feb98 to 2030, 26Feb98 (6 days/surrendered).
         Award: Extra duty for 10 days. No indication of appeal in the record.
981002:  Applicant arrested in Everett, Washington.

981028:  Applicant pled guilty to Assault, 4 th degree/domestic violence in Everett Municipal Court.
         Sentence: Fined $5,000.00 with a deferment of $4,600.00, sentenced to 365 days in jail, deferred 315 with 50 days time served, two years monitored probation. No contact order continued and prohibited from possessing a firearm.
981102:  Applicant returned to military control.

981218:  U.S. Naval Criminal Investigation Service report found in applicant's case folder. Control Number 01Oct98-PSEV-0096-7GNA

990203:  U.S. Naval Criminal Investigation Service report found in applicant's case folder. Control Number 01Oct98-PSEV-0096-7GNA/C

990310:  U.S. Naval Criminal Investigation Service report found in applicant's case folder. Control Number 04Mar99-PSEV-0025-8BND/C

990415:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Commit indecent acts a female under 16 years of age on 15May98, by having intercourse, (2) Wrongfully have sexual intercourse on 15May98 violation of UCMJ, Article 86: Absence from unit, 1200, 2Oct98 to 0745, 2Nov98 (30 days/IHCA), violation of UCMJ, Article 87 (5 specs): (1) Missing movement 0702, 5Oct98, (2) Missing movement on 0735, 18Oct98, (3) Missing movement on 1139, 18Oct98, (4) Missing movement on 1304, 22Oct98, (5) Missing movement on 0958, 27Oct98.
         Award: Reduction to EMFA. No indication of appeal in the record.
990427:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
990427:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990504:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990506:  Commander, Naval Base Seattle directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990507 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 The applicant’s first issue states: “(Equity Issue) This former member proffers that he now regrets his in service misconduct and ask to be given a second chance so that he can pursue a better future. On this basis, he petitions the Board’s relief with re characterization of discharge to full honorable and a narrative reason upgrade to convenience of the government.” While the NDRB is authorized to consider re-characterization based on positive post service conduct, the applicant’s regret for his misconduct is not sufficient reason for the Board to grant relief. The applicant’s request for a change in the reason for discharge is not warranted. The reason the applicant was discharged was his misconduct which included a civil conviction for Assault, NJP’s for Missing Ship’s Movement, Indecent Acts with a Child, as well as Adultery. Relief is not warranted.

The applicant’s second issue states: "(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application." The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant provided two character references requesting for an upgrade to the discharge. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.


PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.jag.af.mil ".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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